Citation Nr: 1506608
Decision Date: 02/12/15 Archive Date: 02/18/15
DOCKET NO. 05-00 348 A ) DATE
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas
THE ISSUE
Entitlement to benefits under 38 U.S.C.A. § 1151 for residuals of a left rotator cuff injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Schechner, Counsel
INTRODUCTION
The appellant is a Veteran who served on active duty from September 1963 to June 1964. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2003 rating decision of the Houston, Texas RO. In June 2010, a videoconference hearing was held before the undersigned; a transcript of the hearing is included in the record. In August 2010, March 2012, and August 2013, the Board remanded the matter for further evidentiary development.
FINDING OF FACT
By an August 2013 letter, the Veteran was asked to provide identifying information and releases needed to secure evidence necessary to properly adjudicate his claim seeking benefits under 38 U.S.C.A. § 1151 for residuals of a left rotator cuff injury; more than a year has lapsed since the request, and he has not submitted the releases.
CONCLUSION OF LAW
By failing to submit identifying information and releases for requested critical evidence needed to properly adjudicate his claim of entitlement to benefits under 38 U.S.C.A. § 1151 for residuals of a left rotator cuff injury within a year following the date of the request, the Veteran has abandoned such claim, and his appeal in the matter must be considered abandoned. 38 U.S.C.A. §§ 5107, 7105(d)(5) (West 2014); 38 C.F.R. § 3.158(a) (2014).
REASONS AND BASES FOR FINDING AND CONCLUSION
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).
In compliance with the Board's August 2013 remand, the AOJ sent the Veteran letters that included VCAA compliant notice and requests for identifying information and releases for private medical treatment. As explained below, pertinent (and perhaps critical) evidence in the matter on appeal remains outstanding. Such evidence cannot be obtained without the Veteran's cooperation (by providing identifying information and authorizations for releases of records). The AOJ made the necessary attempts to secure from the Veteran releases for outstanding postservice treatment records. He has not responded, and further development for such records could not proceed. Given the circumstances, VA has met its assistance obligations; no further assistance is required.
Legal Criteria, Factual Background, and Analysis
When evidence requested in connection with an original claim or a claim for increase is not furnished within 1 year of the request, the claim will [emphasis added] be considered abandoned. 38 C.F.R. § 3.158(a).
The Board's August 2010, March 2012, and August 2013 remands noted that the Veteran underwent VA left total shoulder replacement surgery in May 1997. The Board further noted that in May 2000, the Veteran underwent a total left shoulder revision by Dr. Lifland at Christus Spohn Hospital due to dislocation of the original prosthesis, and a new prosthesis was implaced; and in September 2000, he underwent re-insertion of the head component of the left shoulder prosthesis.
The August 2013 Board Remand instructed the AOJ to secure the outstanding non-VA treatment records pertaining to the May and September 2000 left shoulder surgeries (after obtaining from the Veteran identifying information and releases) and specifically advised the Veteran of the provisions of 38 C.F.R. § 3.158(a), as well as the consequence of a failure to respond within one year (i.e., that the claim would be considered abandoned). [Notably, in Jernigan v. Shinseki, 25 Vet. App. 220 (2012), the U.S. Court of Appeals for Veterans Claims held that even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158(a), VA regulations are "binding on all who seek to come within their sphere" regardless of whether an appellant has actual knowledge of what is in the regulation.]
In August 2013, the AOJ sent the Veteran a letter asking him to complete and return an enclosed VA Form 21-4142 (Authorization and Consent to Release Information to the Department of Veterans Affairs) in order that VA could secure records of his non-VA treatment for the left shoulder surgeries from Dr. Lifland and Christus Spohn Health System. The letter was mailed to his current address, and it was not returned as undelivered. In his August 2013 response, the Veteran did not submit the requested forms, instead marking the box stating, "I have enclosed all the remaining information or evidence that will support my claim. Please decide my claim as soon as possible." The Board interprets this response as indicating that the Veteran does not intend to comply with the request. More than a year has passed since the August 2013 letter was sent, and the Veteran did not submit any further response. In February 2014, the AOJ readjudicated the matter and thereafter returned the case to the Board.
The Veteran has declined to provide to VA identifying information and releases necessary for VA to secure pertinent evidence regarding his claim for entitlement to benefits under 38 U.S.C.A. § 1151 for residuals of a left rotator cuff injury. The Board observes that the critical questions in this case, i.e., whether it was indeed VA treatment that was the proximate cause of the additional shoulder disability that required the further surgical intervention/revision in 2000, and whether VA surgical and medical treatment in 1997 involved any fault on the part of VA, cannot properly be addressed without a complete record of what transpired in the interim (which presumably would have been described in the additional records sought). The Veteran controls access to those records. His refusal to allow VA adjudicators access to the records leaves the records incomplete (and creates an inference that the records outstanding do not support his claim). The regulation governing in this situation, 38 C.F.R. § 3.158(a), is clear and unambiguous, and mandates that the claim will be considered abandoned. Hence, the Board has no recourse but to conclude that the Veteran has abandoned this claim. See Hyson v. Brown, 5 Vet. App. 262 (1993). The duty to assist is not a one-way street. A veteran cannot passively wait for assistance in those circumstances where his cooperation is needed for evidentiary development (see Wood v. Derwinski, 1 Vet. App. 190, 193 (1991)), nor may he deliberately choose to ignore multiple requests for identifying information and releases for pertinent (and perhaps critical) evidence, as appears to be the case here. As the Veteran has abandoned his claim of entitlement to benefits under 38 U.S.C.A. § 1151 for residuals of a left rotator cuff injury, there is no allegation of error in fact or law for appellate consideration in the matter. Under 38 U.S.C.A. § 7105(d)(5), the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.
ORDER
The appeal seeking benefits under 38 U.S.C.A. § 1151 for residuals of a left rotator cuff injury is dismissed.
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George R. Senyk
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs